In the Shadows: The Difficulties of Implementing Current Immigration Policies in Adjudicating Gender-Diverse Asylum Cases in Immigration Courts

by Michael Santos

Michael Santos is a recent graduate of the University of Southern California (USC) Gould School of Law, where he served as the Legal Director of the USC Iraqi Refugee Assistance Project. He has worked with LGBT immigrants and refugees in several capacities, including successfully obtaining asylum, withholding of removal, and protection under the United Nations Convention Against Torture for gay, HIV-positive, and transgender asylum seekers at the USC Immigration Clinic in Los Angeles, California, and National Immigrant Justice Center in Chicago, Illinois.

Most recently, he worked on increasing affordable health care access for vulnerable populations such as limited-English-proficient and LGBT communities under Title VI of the Civil Rights Act and Section 1557 of the Affordable Care Act as a legal intern for the U.S. Department of Health and Human Services. Santos will begin his fellowship at the Clinton Foundation in New York in September 2013.

Abstract:

In order to protect national interests, the REAL ID Act of 2005 was enacted to help prevent terrorists from coming into the United States. The act curbed abuses to the existing asylum system. Changes stemming from REAL ID heightened the credibility and corroboration standards for asylum and provided immigration judges more discretion in denying asylum claims. However, the application of REAL ID to lesbian, gay, bisexual, and transgender (LGBT) asylum claims reveals how asylum law fails to both recognize and adequately offer protection to LGBT asylum seekers. This article highlights the problems and suggests solutions to the difficulties of implementing current immigration policies when adjudicating gender-diverse asylum claims.

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Introduction

As the world continues to globalize, one would expect countries like the United States to be more hospitable and sensitive to the needs of refugees seeking asylum within its borders. However, after the September 11 terrorist attacks, U.S. asylum law became even more exclusionary. In response to the attacks, Congress passed the REAL ID Act of 2005 (Cianciarulo 2006).

The publicity surrounding the enactment of REAL ID focused on preventing terrorists from entering the country; however, using national security concerns to rationalize restrictive immigration policies is unsound given that there are other avenues available to terrorists and that additional procedural barriers to obtaining asylum can be burdensome. U.S. asylum law was revised to curb abuses of the immigration system by asylum seekers who have false claims (Wasem 2011).

As a result, REAL ID heightened the credibility and corroboration standards for asylum and provided immigration judges more discretion in denying asylum claims (White 2006). The Board of Immigration Appeals (BIA), the administrative body that reviews decisions by immigration courts, annually “publishes approximately 50 decisions out of the roughly 4,000 cases . . . [that] serve as binding precedents for immigration judges” (Jenkins 2009). This small number of published cases makes it difficult to determine or analyze systemic trends. Moreover, the BIA and immigration courts do not track the number of lesbian, gay, bisexual, or transgender (LGBT) individuals seeking asylum, the disposition of those cases, or the treatment of such cases after REAL ID went into effect. Thus, the U.S. immigration court system’s treatment of the LGBT community remains unclear and largely invisible.

REAL ID, if not amended or repealed, may be detrimental to many LGBT asylum applicants. Some, if not many, of the rejected LGBT asylum claims are genuine claims of fear of persecution. The United States needs to reform its current immigration system because it is unnecessarily expensive and inefficient, and it forces certain individuals to come to terms with their identities as LGBT or HIV-positive even though they may not be prepared to do so (Immigration Policy Center 2011; Morton 2011). In order to address the challenges REAL ID has created for LGBT asylum claims, I argue that the U.S. immigration system should better comport with international law and adopt the Yogyakarta Principles, which apply international human rights law standards to sexual orientation and gender identity issues (International Commission of Jurists [ICJ] 2007).

While research has been done on the effects of REAL ID on the adjudication of LGBT asylum cases, little attention has been paid to how REAL ID can force someone to publicly self-identify as LGBT (i.e., “come out”) while he or she is still struggling to deal with his or her identity. Coming out can be a traumatizing experience for most people who are not prepared to fully disclose their sexual and gender identities in public, but it can be even more traumatizing for refugees seeking asylum from sexually repressive cultures (Santos 2012). The goals of this article are to inform the legal profession, particularly immigration attorneys and judges as well as other legal advocates, about adjudicating LGBT asylum claims and to show how immigration proceedings, particularly the far-reaching, detrimental effects of the credibility and corroboration requirements under REAL ID, can force unnecessarily traumatic experiences on LGBT asylum seekers. The application of REAL ID to LGBT asylum claims reveals how asylum law fails to recognize and offer protection to LGBT asylum seekers and how it violates their rights to privacy and to a fair trial. Adopting the Yogyakarta Principles can help address these flaws. This article provides an overview of current U.S. asylum law and discusses how REAL ID is symptomatic of the immigration system’s current problems in the context of transgender asylum claims. It then goes on to discuss the role of international law, through the Yogyakarta Principles (or, the Principles), in shaping the adjudication of U.S. transgender asylum cases and how the Principles could be used to address REAL ID’s heightened credibility and corroboration requirements and allow for greater judicial discretion.

Current State of Affairs: Corroboration and Credibility Problems with the REAL ID Act
Current U.S. Asylum Law as It Applies to Transgendered Asylum Seekers

Obtaining asylum in the United States is not a given right to foreign nationals but rather a discretionary form of relief granted by the U.S. government to those who satisfy the definition of a refugee. To satisfy the definition of a refugee, there must be proof that an individual suffered past persecution or has a well-founded fear of future persecution on account of a protected ground, which is limited to race, religion, nationality, membership in a particular social group, or political opinion (Neilson and Morris 2005). LGBT asylum applicants almost always claim a fear of persecution based on membership in a particular social group. While recognition of belonging to the LGBT community is a legitimate basis for seeking asylum, current asylum law fails to distinguish nuances within the LGBT community. For example, courts have inappropriately treated applicants who identify as transgender women as “gay men with female sexual identities” (Hernandez-Montiel v. Immigration and Naturalization Service 2000). The United States has yet to officially recognize transgender applicants as belonging to a distinct “particular social group” (Matter of Acosta 1985).

An asylum applicant is required to file an application within one year of arrival in the United States. Many LGBT applicants miss this one-year deadline because they do not know that they can qualify for asylum based on fear of persecution because of sexual orientation or gender identity (Neilson and Morris 2005). Others miss the deadline because they are still struggling to define their identities. Having an HIV-positive diagnosis further complicates the problem of effectively coming forward with one’s asylum application because some HIV-positive individuals choose to remain discreet about their HIV status for fear of even greater persecution than that experienced because of their LGBT status alone.

If an applicant fails to file the asylum application in a timely manner, the applicant could still remain in the country through a grant of withholding of removal. A granting of withholding of removal, however, does not mean that the transgender applicant is free to stay in the United States indefinitely (Birdsong 2008). An applicant may be removed if the United States determines that conditions in the applicant’s home country have improved such that the claim for fear of persecution is essentially defeated (Neilson and Morris 2005, 247-248). Transgender applicants who have been granted withholding have been threatened with removal back to their country of origin because some part of that country has recently granted its gay citizens the right to marry. In determining changed country conditions, courts rely heavily on the U.S. State Department’s country reports (Hinger 2010; Wasem 2011). Signs pointing to an increased social acceptance of the gay community in a particular country could adversely affect one’s application for asylum and withholding of removal.

With transgender women still being treated as members belonging to the social group of “gay men with female sexual identities,” the United States continues to fail to distinguish the diversity within the LGBT community. Courts should distinguish gay men from transgender women in characterizing their membership in a particular social group because this creates problems, particularly when an asylum applicant’s country of origin passes laws protecting individuals who are gay but not individuals who are transgendered.

REAL ID: Credibility and Corroboration Problems

REAL ID includes provisions that are particularly damaging to transgender immigrants in the context of asylum claim. For example, REAL ID increased the burden of proof requirements—applicants must demonstrate “a clear nexus between the persecution and a protected ground” (Gehi 2009). It must be shown that the applicant’s claim of persecution based on sexual orientation is at least one of the central reasons for the persecutor’s motivation to act against the applicant (Cianciarulo 2006; Immigration and Naturalization Service v. Cardoza-Fonseca 1987; Voci v. Gonzales 2005). This becomes problematic in mixed-motive cases, in which the applicant was persecuted on account of other additional nonprotected grounds and immigration judges can question whether there really was persecution based on sexual orientation and/or gender identity. REAL ID also requires applicants to augment their personal statements with documents that corroborate their claims of abuse, which can be very difficult for those who are running away from family and authorities who want to hurt them because of their sexual orientation and gender identity.

At the time of REAL ID’s drafting, legislators “did not anticipate an asylum applicant fleeing persecution on account of his or her sexual minority status” (Conroy 2009). Floor debate on REAL ID was sparse, and legislators enacted REAL ID as a protective measure against terrorists entering the country. Because of the limited discussions in the legislature, courts are given more discretion in making decisions regarding sexual orientation and gender identity asylum cases. REAL ID exacerbates this problem because it allows the biases of judges to be factored in when deciding an applicant’s asylum claim. Judicial decisions largely determine how REAL ID is applied to transgender asylum cases and other LGBT cases.

Under REAL ID, the trier of fact must consider the totality of the applicant’s circumstances. However, REAL ID places great significance on the applicant’s demeanor, candor, and responsiveness. It allows statements the applicant made to be compared at any time, regardless of whether or not they were made under oath. These factors can be negatively influenced by the applicant’s limited English proficiency, socioeconomic background, continued fear of persecution, and fear of coming forward to authorities because of a prior history of discrimination and persecution. Furthermore, it “permits negative credibility determinations based on minor inconsistencies and inaccuracies, regardless of whether the mistake goes to the heart of the applicant’s claim” (Emergency Supplemental Appropriations Act 2005). REAL ID further fails to provide judges with a standard of how much weight should be given to inconsistent statements, omissions, and demeanor. It wholly eliminates any presumption of credibility or benefit of the doubt for asylum applicants at the initial asylum hearing.

The credibility issues sexual minorities face depend on the facts of each asylum case. For some gay applicants, credibility becomes an issue when the immigration judge does not believe the applicant to be gay (Shahinaj v. Gonzales 2007). Credibility becomes an issue for a transgender asylum applicant once the immigration judge requires evidence to corroborate the applicant’s asylum claim (Ornelas-Chavez v. Gonzales 2006).

Under REAL ID, an asylum applicant must provide evidence of persecution on account of a protected ground that a judge deems to be reasonably available. Corroborating evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain it (Conroy 2009). However, failure to provide evidence may result in the applicant not meeting the burden of proof (Matter of S-M-J 1997). REAL ID does not impose any standard of reasonableness to judges when they determine whether corroboration is necessary or the provided evidence is sufficient (Cianciarulo 2006). As a result, immigration judges can require corroboration in any form whatsoever—“unreasonable requests for evidence shift the burden to the applicants to show that it is reasonable that they do not have the evidence” (Turney 2011).

In the case of transgender women classified as gay men with female sexual identities, a credible fear of persecution would be difficult to corroborate under the current asylum system particularly if the persecutor is characterized as a private actor (Harbeck 2010). Reporting a crime to state authorities is not necessary if the applicant “can demonstrate that doing so would have been futile or that contacting the authorities would have subjected him to further abuse” (Ornelas-Chavez v. Gonzales 2006). However, in a recent decision by the United States Court of Appeals for the Ninth Circuit, an HIV-positive transgender woman was denied asylum because she failed to sufficiently explain why reporting the sexual abuse to the authorities would have been futile or would have put her at risk of harm (Castro-Martinez v. Holder 2011). The applicant chose not to report the sexual abuse to the authorities despite laws against it because the applicant believed that doing so would be futile. The Ninth Circuit, in accordance with REAL ID, held that “it was not unreasonable for the BIA to perceive [the applicant’s] explanation for not contacting the authorities to be less than persuasive” (Castro-Martinez v. Holder 2011). In other cases, courts have described persecution by state authorities as isolated, rogue acts to justify the denial of asylum (Joaquin-Porras v. Gonzales 2006).

Another problem transgender asylum applicants face is changed country conditions. Adjudicators often rely on country conditions reports in determining whether to grant the applicant asylum. In Velez v. Attorney General, the respondent submitted additional evidence as part of the motion to reopen the respondent’s case (360 Fed. App’x 103 2010). Evidence showed that sexual minorities in Colombia, especially transgender prostitutes and nongovernmental organization activists, are sometimes victims of violence and social cleansing. In Velez, the Eleventh Circuit held that a gay Colombian respondent “failed to provide material evidence of changed country conditions,” and therefore, the “BIA did not abuse its discretion in denying [the respondent’s] motion to reopen” and petition for review (360 Fed. App’x 103, 104, 2010).

In the transgender asylum context, this kind of adverse corroboration finding is problematic because courts often confuse the issue of persecution and transgender status. Decriminalization of homosexual conduct, legalization of same-sex marriage, recognition of civil unions, and adoption rights for LGBT parents can factor into changed country conditions claims (Harbeck 2010). These improvements in life for lesbian, gay, and bisexual individuals have been used to undermine asylum claims made by transgender individuals wrongly classified as gay men with female sexual identities. In Castro-Martinez (2011), the court upheld the denial of a transgender woman’s asylum claim and noted “the ongoing improvement of police treatment of gay men and efforts to prosecute homophobic crimes.” Courts should also be careful in addressing this confusion between improved country conditions for gay men and for transgender individuals because social gains for one group does not necessarily entail improved treatment of another group.

There are instances where conditions affecting the LGBT community should be applied to transgender asylum applications and there are instances where they must be distinguished. Courts should be familiar with the distinction when making this call. In Velez, the respondent submitted additional evidence as part of the motion to reopen the respondent’s case. The court, for example, should have found that the respondent met the burden of proof in proving persecution (even though the new evidence showed violence in Colombia targeting transgender citizens) on account that the gay respondent is considered a sexual minority and was subjected to similar violence generally experienced by transgender individuals (360 Fed. App’x 103, 104, 2010). On the other hand, legal protections for same-sex couples and other factors showing improved country conditions for gays and lesbians should be weighed lightly in a transgender asylum case because a transgender applicant will probably experience different, if not greater, violence from that experienced by gays and lesbians. Unlike gay men, transgender women who challenge stereotypical gender norms can have more social visibility and therefore be more susceptible to harm and violence (Turner 2007).

Eliminating Bias: The Use of the Yogyakarta Principles in Addressing the Challenges of REAL ID in Transgender Asylum Cases

This section discusses the importance of international law and its role in shaping U.S. asylum law and the adjudication of transgender asylum cases, particularly through the adoption of the Yogyakarta Principles. This section also provides a critique of how the United States has failed to keep up with international standards. The current asylum system gives discretion for bias that hinders efforts to provide culturally appropriate guidelines for handling sexual orientation and gender-based asylum applications. Implementation of the REAL ID provisions that undermine transgender asylum cases departs from REAL ID’s original purpose of protecting the country from terrorists. REAL ID excludes those that international human rights laws are designed to protect. This section discusses the application of the Yogyakarta Principles to the adjudication of transgender asylum cases in the United States and how the Principles offer possible solutions to the credibility and corroboration problems that REAL ID poses.

A Brief Introduction to the Yogyakarta Principles

In November 2006, a group of international human rights law experts met in Yogyakarta, Indonesia, to draft what is now known as the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (ICJ 2007). The Principles restate existing international human rights law, but also seek to codify developing elements of the law that are helpful for victims of discrimination and that have not yet achieved binding status. To date, “the Principles have already attained a high degree of influence” and are used in United Nations Human Rights Council’s proceedings and in overturning discriminatory laws in some countries, incorporated into foreign and domestic policies of a number of countries, debated by regional human rights bodies in Europe and South America, and included in a number of United Nations agencies and human rights rapporteurs (Brown 2010). Despite their growing influence in the international community, the Principles “remain relatively unknown among grassroots human rights activists in most countries, and almost entirely unknown within the United States” (Brown 2010). One possible reason why the Principles remain largely unknown in the United States is the country’s increasing focus on same-sex marriage to the exclusion of other issues affecting LGBT individuals (New York Times n.d.).

General Application of the Yogyakarta Principles in Transgender Asylum Cases

The Principles are by no means perfect. Some states are “reluctant to embrace the Principles completely because of the extent of the obligations they ask states to assume” (Brown 2010). Some of the rights the Principles relevant to this article assert “have never been addressed by authoritative interpreters of international law” and therefore lack binding authority (Brown 2010). At the very least, immigration courts, judges, and asylum officers should find the Principles as persuasive authority. The United States has already incorporated, to a limited extent, some of the rights the Principles assert, such as Principle 23, which holds that:

[BEGIN INDENT]
Everyone has the right to seek and enjoy in other countries asylum from persecution, including persecution related to sexual orientation or gender identity. A State may not remove, expel, or extradite a person to any State where that person may face a well-founded fear of torture, persecution, or any other form of cruel, inhuman, or degrading treatment or punishment, on the basis of sexual orientation or gender identity. (ICJ 2007)
[END INDENT]

While the United States recognizes the right to seek asylum, other rights have not been put into practice in all areas of U.S. immigration and refugee law, especially after REAL ID went into effect. One argument for the adoption of all the Principles despite the obligations to ensure effective protection from sexual orientation and gender identity discrimination goes to considerations in determining whether a transgender asylum applicant has a fear of future persecution. In assessing the clear probability of future persecution, a judge must account for whether any of the Principles would be violated should the applicant be returned to his or her country of origin. If the goal is to make changes in the law, then the United States should recognize and adopt some, if not all, of the Principles. The Principles could be “voluntarily adopted for use by states as policy, or even law, via legislation or through the courts” (Brown 2010). The Principles could be used to challenge oppressive legal standards, to develop new government policy, to seek a responsive government, to educate the public, or to build a movement (Quinn 2010, 87). At the very least, the United States should adopt the following principles highlighted in this section to protect LGBT individuals with legitimate asylum claims.

Yogyakarta Principle 3: The Right to Recognition Before the Law

The Principles provide that “[e]veryone has the right to recognition everywhere as a person before the law” (ICJ 2007). Transgender asylum applicants “shall enjoy legal capacity in all aspects of life. Each [applicant’s] self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. . . . No one shall be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity” (ICJ 2007). The Hernandez-Montiel case is an example of the current asylum system’s failure to recognize transgender applicants as individuals belonging to a distinct social group. The court in Hernandez-Montiel v. Immigration and Naturalization Service (2000) did recognize that a person’s sexual identity is “immutable” and so “fundamental to one’s identity that a person should not be required to abandon [it].” In doing so, it became an important development in asylum law “because it defines [membership in a] ‘particular social group’ in a way that embraces individuals who are actually persecuted—even if they fail to qualify for asylum under the statute’s other enumerated categories” (Birdsong 2008). At the same time, it characterized a transgender applicant as a gay man with a female sexual identity. While the court in Hernandez-Montiel defined transsexualism in a footnote, it concluded that the court “need not consider in this case whether transsexuals constitute a particular social group” (2000). This decision reflects the confusion that courts have over the issue of transsexuals and transgender individuals and the court’s reluctance to deconstruct the homosexual-heterosexual binary. Although transgender asylum seekers have succeeded in some cases, there are currently no published decisions that recognize transgender individuals as belonging to a particular social group (Neilson and Morris 2005). In addition, Leonard Birdsong (2008) has argued that most of the “published cases are decisions where asylum is denied, which creates a system in which it is nearly impossible . . . to discern clear standards necessary to establish a successful asylum claim.” As demonstrated in Hernandez-Montiel, “[e]ach asylum claim seeks to demonstrate the fixity of the protected group and the individual’s inclusion therein” (2000). Expanding the particular social group category “has been least successful where characteristics appear as matters of choice without deep personal and societal significance” (Hinger 2010). However, identifying oneself as transgender “is universally recognized as inherent, rather than chosen” and warrants recognition as a separate category for a particular social group (In re Heilig, 816 A.2d 68, 78 (Md. 2003)). Hernandez-Montiel’s precedent is problematic because it created a standard that fails to meet the needs of those who do not fit neatly into a particular protected ground.

Not recognizing transgender individuals as members belonging to a particular social group creates problems under the current asylum system. For example, the problems gay applicants face under current asylum law become conflated with the problems transgender women face (Morgan 2006). Current U.S. asylum law should recognize transgender applicants as a particular social group given their common immutable characteristic that should not be required to change because it is fundamental to their individual identities (Marouf 2008). Failing to do so renders the community invisible to the asylum system. Defining one’s sexual and/or gender identity has already been proven difficult given the fluid nature of human sexuality. Adjudicators have confused the transgender experience of oppression with that experienced by gay applicants. Judges fail to see the risk of persecution in transgender applicants from countries where treatment of gays appears similar to that experienced by those in the United States (Hinger 2010). As previously discussed, this is problematic when a transgender individual is characterized as a gay man with a female sexual identity and the judge uses legalization of same-sex marriage in the applicant’s country of origin as grounds for denying that applicant’s asylum claim. Even though the asylum process is facially neutral, immigration officials and judges are empowered to make “decisions based on racialized sexual stereotypes and culturally specific notions of homosexuality, thus discriminating against those who do not conform” (Morgan 2006).

Lumping all sexual minorities into one social group also creates a problem when the decision to transition from one gender to another occurs once the applicant is in the United States. Using “homosexuality” or “gay” as a blanket term for all LGBT asylum applications is detrimental to transgender applicants and to those who are still struggling with their own identities because these individuals do not fit neatly in the homosexual-heterosexual binary (Moon 2008). The United States asylum system should respect the privacy rights of a transgender applicant and recognize the applicant’s right to declare his or her own perceived sexual identity (ICJ 2007). “Recognizing the complexities of cases and focusing on the social norms enforced through persecution, rather than relying on assumed categories of identity can allow for broader protections under [U.S.] asylum law” (Hinger 2010). By co-opting a transgender applicant into a particular social group of gay men who identify as females, the transgender applicant is forced to conceal, suppress, or deny the applicant’s sexual orientation and gender identity, thus shielding heterosexuality from “the anxiety of variability” (Hinger 2010). As the Principles assert, no transgender applicant should be “subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity” (ICJ 2007). Furthermore, imputing a gay identity to transgender applicants for the purposes of fitting such applicants in a defined particular social group invites asylum officers and judges to ask the wrong questions in the asylum process. The National Center for Transgender Equality and the Transgender Law Center have criticized asylum officers for asking transgender applicants “questions about their sex lives or their ‘coming out experiences’” (Benson 2008). Such questions are irrelevant to the asylum process for all transgender applicants, whether or not they identify as gay.

To this end, asylum officers and immigration judges should be willing “to receive and rely on additional sources of information” in order to depict a more nuanced reflection of alternative perspectives on gender nonconformity information that would provide protection to transgender individuals and transsexuals in the context of asylum law (Hinger 2010). These sources include, but are not limited to, the Yogyakarta Principles, the United Nations High Commissioner for Refugees (UNHCR) Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (2008) (which incorporates the Yogyakarta Principles), and country condition reports of organizations other than the Department of State. Adopting the Yogyakarta Principles is superior to adopting UNHCR’s Guidance Note because the Principles provide additional obligations for states to comply with in order to successfully implement the rights asserted within each Principle. Furthermore, the Principles hold accountable violators of these rights. Such obligations and accountability are not addressed in the Guidance Note.

Yogyakarta Principle 6: The Right to Privacy

In addition to the right to recognition before the law, transgender applicants also have the right to privacy and to declare their own perceived sexual identity. Yogyakarta Principle 6 holds that “the right to privacy ordinarily includes . . . decisions and choices regarding both one’s own body and consensual sexual and other relations with others” (ICJ 2007). Although there are no provisions in the U.S. Constitution regarding the right to privacy and to bodily integrity, the U.S. Supreme Court has placed constitutional protection on an individual’s right to privacy in several occasions (see Griswold v. Connecticut 1965; Roe v. Wade 1973). Just as consenting adults enjoy the freedom to engage in private sexual acts, so should transgender asylum applicants enjoy the right to assert their own perceived gender identity. Unfortunately, the constitutional right to privacy has not found an avenue to reassert itself in the asylum context. Failure of the current asylum system to recognize transgender applicants as belonging to a separate particular social group has led many judges referring to applicants based on their biological sex and imputing a gay identity to such individuals. In Hernandez-Montiel, for example, the court used the male pronoun throughout the proceedings to refer to the applicant who was clearly a transgender woman (2000). By referring to the applicant based on his or her birth sex, the courts are forcing the applicant to adopt an identity that conflicts with his or her gender expression and perceived gender identity, which lie at the heart of the applicant’s asylum claim. Marybeth Herald and Julie Greenberg (2005) argue that this “imposition undermines [the applicant’s] right to personal dignity and autonomy” and could adversely affect the applicant’s credibility given that some transgender applicants have a genuine fear of authority based on past persecution. The transgender community is diverse; many transgender individuals do not self-identify as gay. To legally categorize a transgender individual as “‘same sex sexual orientation with opposite sex sexual identities’ as Hernandez-Montiel did violates the individual’s right to privacy and bodily integrity” (Neilson and Morris 2005). The transgender community encompasses a broad range of sexual orientations, and some transgender individuals self-identify as heterosexual. At least two subsequent cases in the Ninth Circuit repeated the mischaracterization of transgender women as belonging to the social group of gay men with female sexual identities (Reyes-Reyes v. Ashcroft 2004; Ornelas-Chavez v. Gonzales 2006). In both these cases, the court used pronouns based on the applicants’ birth sex.

Yogyakarta Principle 8: The Right to a Fair Trial

The Principles also provide that “[e]veryone is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law, in the determination of their rights and obligations in a suit at law and of any criminal charge against them, without prejudice or discrimination on the basis of sexual orientation or gender identity” (ICJ 2007). Unlike the right to privacy, the right to a fair trial is explicitly guaranteed under the U.S. Constitution. However, research has shown that there are still judge-to-judge disparities in asylum decisions (Wasem 2011). Asylum decisions that immigration officials make lack transparency (Morgan 2006). Standards should be put in place requiring asylum officers and judges to evaluate evidence from a culturally neutral standpoint. Consistency in defining and interpreting U.S. asylum laws is greatly needed (Birdsong 2008). Problems and inconsistencies persist in asylum adjudications for a number of reasons, including lack of definitions for certain statutory words. Currently, the terms “persecution” and “member of a social group” are not defined in the statutes. Instead, court opinions provide the interpretations of these terms. These are the same courts that do not apply asylum laws consistently and are given great discretion to enforce the tough credibility and corroboration provisions of REAL ID.

REAL ID allows more room for biases and stereotypes to influence a decision in granting or denying an applicant’s asylum claim. It invites and fails to prevent such prejudice (Conroy 2009). The current asylum system needs better-trained immigration judges and asylum officers to minimize the risk that the findings based on these biases will remain law on appeal. For training and education purposes, immigration authorities should also continue utilizing external agencies that are in a better position to advocate for the rights of LGBT applicants. They need to understand the diversity within the LGBT community and how LGBT individuals, particularly transgender applicants, fit in the current asylum system. The increased burden of proof requirement under the REAL ID is challenging for many transgender asylum applicants. For example, the “lack of employment opportunities forces many transgender individuals into sex work,” which make these individuals more vulnerable to be profiled and arrested by police officials in countries where prostitution is illegal or where there is a high criminalization of sex work (Gardon 2009). In Mexico, the persecution of transgender women is well documented (Prieur 1998). To find that country conditions have improved for transgender individuals because gays are becoming more socially acceptable denies these individuals their self-identity and allows prejudice to adversely impact their asylum claims. In Kimumwe v. Gonzales (2005), the Eighth Circuit upheld the immigration judge’s and BIA’s finding that the gay applicant’s problems with authorities in Zimbabwe “were not based simply on his sexual orientation, but instead resulted [from] his engaging in prohibited sexual conduct.” Although this case does not involve a transgender applicant, it presents “analogous issues and difficulties that a transgender applicant would face under a court’s scrutiny and analysis” (Jenkins 2009). The vagueness of the laws against disturbing public order encourage “harassment, detention, extortion, and bribery” of sexual minorities by the police (Prieur 1998). These laws against disruption of public order are used as a pretext for the harassment of some sexual minorities. Once detained (either in the United States or in the country of origin), LGBT detainees face increased vulnerability to abuse (Turney 2011). Use of vague laws as a means of persecuting sexual minorities is problematic because this invites courts to distinguish between persecution based on the applicant’s sexual orientation and/or gender identity and persecution based on the applicant’s conduct.

Conclusion

Courts are slowly acknowledging that transgender individuals are a protected minority, but these individuals largely remain invisible. “[I]f one is not recognized as existing by the law, one is not protected by the law” (Vade 2005). REAL ID created “significant impediments by inviting bias, improper inferences, illogical valuations of evidence, and unrealistic expectations for corroboration” (Vade 2005). The sad reality is that REAL ID creates barriers for an already vulnerable population while ignoring other likely immigration routes available to potential terrorists (Cianciarulo 2006). The current American asylum system does not have any room for expressions of variability, particularly in the areas of sexual orientation and gender identity. It does not recognize transgender individuals as belonging to a distinct social group, independent of self-identified sexual orientation, and fails to provide transgender applicants a fair trial for asylum applications. One of the ultimate challenges in implementing the Yogyakarta Principles in post–REAL ID asylum law is that “securing protection in an individual case sometimes creates precedents that make it more difficult to prevail in future asylum claims, and that limit conceptions of gender and sexual orientation within the broader movement for human rights” (Hinger 2010). This is in light of the fact that most published cases are decisions where asylum is denied. Rather than establishing case precedent that only addresses what an improper asylum claim is, the BIA should publish cases or other guidance demonstrating what a successful asylum claim would look like. With limited case precedent, the question remains open as to how an adjudicator would decide a transgender asylum case based solely on the individual’s transgender identity. Adopting the Yogyakarta Principles would allow for broader protections under U.S. asylum law and would allow such cases to be decided in a fair and inclusive manner. The current asylum system should also compile statistical data regarding transgender asylum cases to address this problem (Morgan 2006). Without the ability to disaggregate statistics, it would be difficult to know exactly how REAL ID has affected the outcomes of transgender asylum applications. With today’s increasing presence and discussion of different LGBT issues, the United States must recognize and address the many difficulties of implementing current immigration policies in adjudicating gender-diverse asylum cases.

Brown, David. 2010. Making room for sexual orientation and gender identity in international human rights law: An introduction to the Yogyakarta Principles. Michigan Journal of International Law 31(4): 821-824.

International Commission of Jurists (ICJ). 2007. Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity.

Jenkins Ellen A. 2009. Taking the square peg out of the round hole: Addressing the misclassification of transgendered asylum seekers. Golden Gate University Law Review 40(1).

Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir. 2006).

Kimumwe v. Gonzales, 431 F.3d 319, 321 (8th Cir. 2005).

Marouf, Fatma E. 2008. The emerging importance of “social visibility” in defining a particular social group and its potential impact on asylum claims related to sexual orientation and gender. Yale Law and Policy Review 27.

Morton, John. 2011. Exercising prosecutorial discretion consistent with the civil immigration enforcement priorities of the agency for the apprehension, detention, and removal of aliens. U.S. Department of Homeland Security. Memorandum, 17 June.

Neilson, Victoria, and Aaron Morris. 2005. The gay bar: The effect of the one-year filing deadline on lesbian, gay, bisexual, transgender, and HIV-positive foreign nationals seeking asylum or withholding of removal. New York City Law Review 8: 233-282.

New York Times. n.d. Times topics: Same-sex marriage, civil unions, and domestic partnerships. New York Times.

Vade, Dylan. 2005. Expanding gender and expanding the law: Toward a social and legal conceptualization of gender that is more inclusive of transgender people. Michigan Journal of Gender and Law 11(2).

Voci v. Gonzales, 409 F.3d 607 (3d Cir. 2005).

Wasem, Ruth Ellen. 2011. Asylum and “credible fear” issues in U.S. immigration policy. United States Congressional Research Service, 29 June.

White, Victor P. 2006. U.S. asylum law out of sync with international obligations: REAL ID Act. San Diego International Law Journal 8.

Endnote

While the LGBTQ Policy Journal uses the acronym “LGBTQ” to refer to lesbian, gay, bisexual, transgender, and queer individuals, “LGBT” is used in this article as a technical term in alignment with established U.S. legislation and regulation.